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American judges, seised of a case requiring them to appraise, under international law, a foreign government's acts, have few attractive options. If they routinely agree to decide these cases, the political costs to the Executive of conducting foreign affairs could increase, sometimes critically. If they routinely refuse these cases, plaintiffs are denied judicial protection. If they follow Executive instructions on a case-by-case basis, judicial independence suffers. It is a dilemma for courts and a continuing uncertainty for users and students of international law. Nowhere has it been more searchingly-if not successfully-explored than in Banco Nacional de Cuba v. Sabbatino.
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